The Move Towards Actual Consent in Georgia DUI Law

Following Williams v. State in 2015, the Georgia Supreme Court sparked a substantial debate whether the tides will soon change for consent laws on BAC testing. The issue is whether an intoxicated individual can make a voluntary decision between testing BAC levels or losing their license for refusing. In the absence of a voluntary decision taking a chemical test amounts to mere acquiescence to law enforcement.  Judges are now required to look at the totality of the circumstances to determine whether a person has voluntarily submitted to chemical testing. 

In my opinion, if a DUI defense attorney is not raising the Williams argument in cases involving blood tests and breath tests, they are missing an opportunity to defend their client. The traditional use of implied consent for alcohol and drug testing requires officers reading the exact language of O.C.G.A. § 40-5-67.1, Georgia's consent statute reads:

“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances . . . If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

Officers read this to anyone arrested for DUI. Officers need permission to test individual's BAC (unless they get a warrant). For a person under the influence, sometimes they submit to testing without a full understanding of the consequences that may result.  The Court held in Williams the language of the Georgia Implied Consent Warning, in and of itself, is insufficient to guarantee that a person is submitting to a test voluntarily.  Primarily, there needs to be more than just the warning itself to show a person made a reasoned decision.

Courts are instructed to look at whether the suspected DUI Driver understood the warning, whether they asked questions about it, whether the arresting officer properly answered those questions, and whether there are signs of coercion in the police encounter.  Our courts are adept at looking at these factors because they are the same factors any judge must consider before a person enters a guilty plea in court; was the plea entered into freely, voluntarily, and with full knowledge of any potential consequences. 

What Will Implied Consent Law Be After Williams?   

• Legislatures can go back to the statutory language and amend it to include more free language; or
• Williams can remain the existing authority, where courts will make the legal determination based on a totality of the circumstances; or
• Police can seek a warrant to obtain the evidence (blood or breath) based on a presentation of probable cause to a magistrate.

Considering warrants of this nature are a heavy burden to place on police and the court system, we can assume that is not the most practical resolution. The first option seems to be the most efficient, however the legislature has remained silent on the matter. If we are to rely on the Courts to resolve the discrepancy, it could be a long and tiring process for Georgia lawyers, judges, and defendants.

Adding Voluntary Language Would Not Lead to a Butterfly Effect:

Adding language of voluntariness in our implied consent laws would have less of an impact than State agents may pessimistically assume. In my experience, I have found that people are more willing to follow police instruction than this issue would presume. I believe that, even if the language is adjusted to give off a more vulnerable appeal to voluntary consent, the nature of its use will remain unaffected. People are likely to comply with officer protocol, regardless of their ability to refuse to test.

Most people believe that if you are respectful and compliant, it will pay off somewhere down the line. In my experience, I find this to be more than true in Georgia. Officers can have an impact on the outcome of a person's DUI case in court. Over the years, I have seen many cases where officers have expressed their empathy for courteous and compliant defendants, and it has helped my clients get a better outcome in court. Additionally, it is not uncommon for officers to be more lenient on the number of charges issued when individuals are respectful and follow orders. Consenting to tests is a big part of that.  People who are being arrested seem to understand that their conduct on the side of the road may have a beneficial impact on their case in court.   Of course, the opposite is true.

What Have Other States Done?

Other states have tried a vast range of legal efforts to resolve this matter. On one end of the spectrum, we have Kansas, who recently made a movement away from requiring testing regardless of consent. Now Kansas requires consent without penalties for refusal. On the other end, we have states like New York, Tennessee, Florida, and South Carolina, who subject every driver to testing. D.C. has adopted the middle ground, just like Georgia, placing consent at the center of all DUI testing.

We need a fair middle ground that gives people the information they need to make an intelligent choice.  I advocate updating our implied consent laws to include language that tells people that any testing is voluntary.